The Most Dangerous Lawyer in America
The case against Alberto Gonzales's nomination as U.S. attorney general is too much, too late.
Having caved to the regime throughout George W. Bush's first term, especially when it came to supporting the unjustified invasion of Iraq, the Senate has an almost impossible task: Stopping this unqualified person from becoming the nation's top law enforcement officer.
The result of this process is pure torture for any reasonable observer: The senators get to express their outrage, but to what end? If your attention span is getting short, check out the brilliant little flash movie How Did We Get Here? on the tortured logic of Gonzales and the rest of the Bush regime; the video's put together by the Lawyers Committee for Human Rights. Start digression: That dynamic organization has inexplicably (to me, at least) changed its name to a slogan, Human Rights First. Is it because you wanted to get the word "lawyers" out of your title? Is it because you want to expand your membership to non-lawyers? Don't be ashamed that most of you are lawyers; some of my best friends and family members went to law school and actually passed the bar. Be proud that you're not using your law degrees solely in the service of debentures or misadventures. End digression.
Whatever its name, HRF is performing an admirable job of watchdogging on the Gonzales nomination.
Someone has to, because the Senate hasn't. During the one measly day the senators had their chance to question Gonzales in person—see my January 6 gavel-to-give-up coverage, "Torture in Real Time"—he couldn't recall this and he couldn't recall that, and he interspersed those responses with frequent eructations of "no," "I don't think so," and "I'll consult my schedule." So they submitted written questions.
And the responses were even more disheartening. Vermont's Pat Leahy distributed Gonzales's written replies—which no doubt were written by people a lot smarter than Gonzales himself. You can find them on the Web at the smart and shrewd Balkinization blog.
By now, you probably know that Gonzales confirms in writing that the CIA can do anything it wants to people whom it considers Al Qaeda suspects. Horrifying, all right, especially in light of Bush's incessant carping about spreading "freedom" and "liberty" throughout the world.
But lost in the furor over that are the future attorney general's responses to purely domestic policies that are impeding the spread of democracy throughout our own damn country.
Gonzales flat-out rejected any criticism of archaic drug-sentencing laws and federal sentencing guidelines—the latter of which the Supreme Court just overturned, by the way. You can refresh your memory first by looking at Ohio law prof Douglas A. Berman's Sentencing Law and Policy blog. Now take a look at Gonzales's replies to Leahy's detailed written questions about the rigidity of federal courts' mandatory minimum sentences and of such Draconian measures as New York's Rockefeller drug laws. In one instance, Leahy pointed out that a conservative federal judge, Paul Cassell of Utah, appointed by Bush himself, described a mandatory sentence as "unjust, cruel, and irrational." So Leahy asked Gonzales:
- Do you agree with Judge Cassell that Congress and the Administration should modify mandatory-minimum laws that result in unjust sentences?
Gonzales replied, in part:
- If confirmed, I pledge to carefully examine the current system of mandatory-minimums with the focus on protecting society and appropriately punishing culpable offenders.
Pressing the point (as futilely as you can with written questions, for God's sake), Leahy then asked:
- Do you agree that, like New York, Congress should reconsider the severity of drug sentences for non-violent offenders which are out of proportion to existing sentences for violent offenses? If not, why not?
Gonzales replied, in part:
- As I stated above, if confirmed, I pledge to examine carefully the current system of mandatory minimum sentencing with the focus on protecting society and appropriately punishing culpable offenders.
Leahy then zoomed in on federal drug sentences, the laws and guidelines that have resulted in a highly unfair and racially unjust criminalization of a sizable proportion of this generation's black and Latino Americans. Leahy asked:
- Great injustices result from the application of mandatory minimum sentences for drug offenses. In particular, the application of mandatory minimums against low-level drug users and sellers is disproportionately harsh. In 1986 Congress created mandatory minimum penalties in the Controlled Substances Act and directed Department of Justice to focus on high-level drug-trafficking cases. Triggers for five year mandatory minimum sentences were set at 500 grams of powder cocaine and 5 grams of crack cocaine.
Are you concerned that the current triggers for five-year mandatory minimum sentences contribute to the type of inequities described by Judge Cassell? Do you have any concerns about our current mandatory minimum sentences for drug offenders?
Gonzales's written response—the part in which he actually says something:
- As I stated, Congress has reserved the application of mandatory minimums for high-priority areas of national concern that most affect public safety, such as drug offenses. It is my understanding that mandatory minimums provide a clear deterrent and have been effective. . . . If confirmed, I pledge to carefully examine the current system of mandatory minimum sentencing with the focus on protecting society and appropriately punishing culpable offenders.
Do we detect a pattern in his responses? This type of boilerplate bullshit is maddening.
Not that any reasonable person expects Alberto Gonzales to be a voice for homeland justice. But the fact is that he may turn out to be a lot more dangerous to our Constitution than John Ashcroft was. Ashcroft was somewhat of a loose cannon in the Bush regime. Gonzales is just a toady, not a policymaker, so he'll do what Don Rumsfeld, Dick Cheney, Karl Rove, and Andy Card want him to do. And he doesn't carry the religious baggage of Ashcroft—see any one of many Nat Hentoff pieces, plus my own 2001 Voice story "The Gospel According to the AG," for starters.
Now, with Gonzales about to take over law enforcement in the U.S., y'all secular types should maybe take Ashcroft's advice and start praying.